In a decision called In Mohamed v. Salad, recently affirmed by the Ontario Court of Appeal, the question was whether a husband was entitled upon separation to the usual rights in the couple’s matrimonial home. The little hitch in this case, however, was that the woman had bought the home herself, taking title solely in her own name, and claimed that man never lived there, despite their marriage of more than a decade.

Under s. 18 of the Ontario Family Law Act, a “matrimonial home” is defined as:

“ Every property in which a person has an interest and that is or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and his or her spouse as their family residence is their matrimonial home.”

Part I of the Family Law Act has specific provisions dedicated to dealing with the matrimonial home upon separation; for example the Act mandates that both spouses have an equal right to possession and empowers a court to make specific orders in connection with disposing of the home.

In this case, then, the question was whether the home was a “matrimonial home” in which the husband had an interest in law. The trial judge dismissed his claim, and the husband appealed.

Of relevance to the story is the fact that the couple had four children together (ranging in age from 16 to 10), and that the husband had not seen them for two years. In fact, he had been out of the country for about a year – and was the subject of a Family Responsibility Office enforcement order for child support arrears – during the period of time in 2005 when the wife bought the home in her name alone. The wife testified that she paid $100,000 towards it purchase price, using her RRSP, a tax refund, savings, and a loan from a family member, with the balance being paid by mortgage.

The wife swore in an Affidavit that – apart from one 5-month reconciliation attempt in 1999-2000 – the couple had not lived together since 1997.

In contrast, the husband asserted that he had indeed moved into and lived in the house, and in fact had personally contributed $54,000 in cash towards its purchase price. In fact, he claimed that he was the one who attended the lawyer’s office to sign the mortgage for the home and to pick up the keys.

Looking at all the evidence, the court found in favour of the wife. It accepted that the parties had conclusively separated by 2000 at the latest. While the husband may have looked after the children by physically being present in the house on occasion, he did not live there. The court also disbelieved the husband’s claim to have contributed $54, 000 towards the purchase price: the court pointed out that there were no cancelled cheques produced as proof, and found it unlikely that he had handed over that sum of money in cash.

As a result, the property simply did not meet the Family Law Act definition of a “matrimonial home.” As such, the husband’s property claim for an interest in the home purchased by the wife, and in her name alone, was dismissed.

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FamilyLLB is written by Russell Alexander, a divorce and family law lawyer based in Ontario, Canada. For nearly twenty years, Russell's firm has helped clients who are going through a separation or divorce. You can find more of Russell's online commentary via Twitter, Google+, LinkedIn, or on the firm's Facebook page.